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The first thing the Court will look at is the financial position of the person applying for Spousal Maintenance (the applicant).
Particularly, the court will consider the income, expenses, assets and liabilities of the applicant spouse.
If the applicant spouse has entered into a new de-facto relationship then the Court will also look at the financial arrangements between both of you and the financial circumstances of that new de-facto relationship.
The Court will also then consider the "income earning capacity" of the person applying for maintenance.
This means the court will also look at whether the person applying to receive payment of Spousal Maintenance has any "ability to earn" which they are not exercising.
There are cases where Courts have decided that the person seeking that Spousal Maintenance be paid to them is actually able to support themselves, but they are supporting themselves because they are not exercising the full extent of their ability to support themselves.
In those cases the Courts have dismissed the applications and told the applicants they are not eligible as they have the income earning capacity to support themselves.
If after looking at the financial position of the applicant and the applicant's income earning capacity, the Court decides they are eligible for Spousal Maintenance as they do have a "need" which is not being met or cannot currently be met by them on their own, then the Court will next look at the capacity (or ability) to pay of the respondent spouse (the former spouse the applicant is seeking an order to pay against).
This will involve the court looking at the financial circumstances including the income, expenses, assets and liabilities of the respondent spouse.
If an order for Spousal Maintenance is made by the Court then you should try to make sure that Order specifies how, when and to where (for example bank account) the actual payments will be made.
If you are the paying spouse, you should also ensure you keep documents evidencing the payment was made. It is often recommended that payments be made from a bank account to a bank account, so permanent and easily reliable evidence of the payment exists.
Our fact sheet Frequently answered questions about Spousal Maintenance has more information about:
You can read about when Spousal Maintenance might be payable by one spouse to their former spouse in our fact sheet Can I get paid Spousal Maintenance.
There is a list of factors the law says the court must consider when deciding whether a person should be ordered to pay Spousal Maintenance to their former partner. You can read that list in our fact sheet List of matters considered for whether Spousal Maintenance is payable.
You need to be eligible to apply for Spousal Maintenance. You can find out whether you or your spouse might be eligible to seek Spousal Maintenance in our fact sheet: Who can apply for Spousal Maintenance.
Strict time limits do apply as to when you can make your application for Spousal Maintenance.
If an order for payment of Spousal Maintenance has never been made before, then there are time limits that apply as to how soon after your separation or divorce you will need to make your application for Spousal Maintenance.
You can read more about this in our fact sheet, Is there a time limit to apply for Spousal Maintenance.
Michelle Beatty, Senior Lawyer
Other Questions answered in the Spousal Maintenance Section
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